On May 4, 2013, the Government of Canada introduced substantive changes to the Federal Skilled worker Class. The Minister of Citizenship, Immigration and Multiculturalism, provides assurances that new federal skilled worker applications, should receive a selection decision within 6-12 months.

The following is a compilation of Frequently Asked Questions prepared by Colin R. Singer, Attorney, summarizing procedures affecting the Economic Class. Mr. Singer appeared before the Parliamentary Standing Committee on Citizenship & Immigration as a witness, prior to the implementation of the Immigration and Refugee Protection Act, 2002.

FREQUENTLY ASKED QUESTIONSIMMIGRATION AND REFUGEE PROTECTION REGULATIONSTHE ACQUISITION OF CANADIAN PERMANENT RESIDENCE UNDER THE ECONOMIC CLASS

Pursuant to the provisions of Canada’s constitutional laws, the holder of a Canadian permanent resident visa and his/her accompanying dependants are permitted to permanently reside in Canada and earn a livelihood in any one of the ten provinces or three territories within Canada. In addition, individuals with Canadian permanent residence may attend primary and secondary education institutions in the various provincially administered public school systems, tuition exempt. Permanent residents also qualify for provincially administered universal health care coverage.

The Federal skilled worker class is point based and confers permanent resident status upon qualified applicants who are able to demonstrate an ability to become economically established in Canada. Applicants are assessed under 6 factors and numerous sub factors of assessment providing for 100 points. Individuals with at least one year of continuous full-time employment experience, or the equivalent in part-time employment in one or more «open» occupations, within the 10 years preceding the date of their application and who possess the required settlement funding, may qualify for assessment. Applicants who do not meet the applicable pass mark may be accepted under the positive discretion provisions of the regulations. This mechanism is (rarely) used to accept a number of applicants who will be able to successfully settle in Canada yet who do meet the applicable pass mark.

Under the Quebec skilled worker class and the Provincial nominee class, applicants may become permanent residents on the basis of their proven ability to become economically established in Canada, in accordance with immigration programs and selection criteria administered by Quebec or the provinces.

A detailed review of the Quebec skilled worker program may be obtained here.

A detailed review of the Provincial nominee programs may be obtained here.

The Investor class is point based and confers permanent residence to applicants who demonstrate an ability to become economically established in Canada on the basis of their business or management experience and high personal net worth. Approval is contingent upon the investor undertaking to commit an irrevocable, passive, non-interest bearing investment of $800,000 in a government guaranteed investment fund. As of February 11, 2014, the Canadian government announced the end of its Immigrant Investor program. Currently, Investor Immigrants must intend to settle in the province of Quebec and apply under the Quebec Investor class.

A successful applicant under the Quebec Investor class is one who has a) owned and operated a business for 2-years in the previous 5-years or has held a high level management position for 2-years in the previous 5-years in a private company, government or NGO; b) possesses a personal net worth of at least CAD $1,600,000 legally acquired and c) undertakes to invest $800,000 in a passive government guaranteed investment for a period of five years and receive no interest. Applicants may finance their investment and liquidate only $180,000 to $220,000 into a government approved financing program for five years and receive no return of capital.

The Entrepreneur class is point based and confers permanent residence to applicants who demonstrate an ability to become economically established in Canada on the basis of their business experience and personal net worth. Approval is contingent upon the entrepreneur undertaking to invest and become active in the management of a qualifying business operated in Canada that will contribute to the economy and create employment. Entrepreneurs may apply under the Quebec Entrepreneur class or a number of Provincial Nominee Programs.

A successful applicant is generally one who has a) managed a qualifying business and has controlled a percentage of equity of the qualifying business for at least two years in the period beginning five years preceding the application; b) possesses a personal net worth of $300,000 and c) undertakes to control a percentage of the equity of a qualifying Canadian business and provide active and ongoing management of the qualifying Canadian business that will create at least one incremental full-time job for Canadian citizens or permanent residents, other than the entrepreneur and their family members. This condition must be fulfilled for a period of one year within the period of three years after the day on which the entrepreneur becomes a permanent resident.

The Self-Employed class refers to applicants who have the intention and the ability to create their own employment and make a significant contribution to the cultural, artistic or athletic life of Canada, or to create their own employment by purchasing and managing a farm in Canada.

A successful applicant is one who has at least two years of experience in the period beginning five years before the date of the application and ending on the day a determination is made on the application, in self-employment in cultural activities or in athletics; participation at a world-class level in cultural activities or athletics; or farm management experience.

To qualify, the applicant must demonstrate a sufficient financial net worth which, although less than an entrepreneur and not specified in the regulations, should enable the applicant to be self-employed in Canada and make a significant contribution to specify economic activities in Canada and to meet the initial settlement requirements for the applicant and accompanying dependants.

Skilled Workers are persons with suitable education, work experience, age and language abilities under one of Canada’s official languages and who are selected as permanent residents under six selection factors which demonstrate their likelihood to become economically settled in Canada. Applicants are assessed under 6 factors and numerous sub factors of assessment providing for 100 points. Individuals with at least one year of continuous full-time employment experience, or the equivalent in part-time employment in one or more «open» occupations, within the 10 years preceding the date of their application and who possess the required settlement funding, may qualify for assessment.

To qualify under the First-Stage, skilled worker applicants must meet the following conditions:

1. Eliminatory condition:

Possess at least one year of applicable experience in one of 50 major high demand occupations (health, skilled trades and finance) listed here; OR

Possess an approved offer of “Arranged Employment”; OR

Legally living in Canada for a minimum of one year as a temporary foreign worker and have received a permanent full time employment offer from current employer; OR

Are enrolled in good standing in a Canadian PhD program and have completed at least two years of the program or graduated within the 12 months preceding the application.

Applicants who meet one of the above eliminatory conditions will be eligible for continued processing as a skilled worker under a second-stage at which time they must also meet each of the following essential selection conditions:

2. Essential selection conditions:

Possess one-year, within the previous 10 years, of suitable continuous full-time paid work experience or the equivalent in part-time continuous employment; AND

The work experience must be classified within Skill Type 0 (Managerial Occupations), Skill Level A (Professional Occupations), or Skill Level B (Technical Occupations and Skilled Trades) within the meaning of the National Occupational Classification system; AND

Score sufficient points under the skilled worker point grid comprising of six selection factors. The current pass mark is 67 points; AND

Possess suitable settlement funding; AND

Undergo a successful security background and medical examination.

The Regulations enumerates the factors and allocates the maximum number of units as follows:

Factor

Score

Final

EDUCATION

Max. 25

LANGUAGE

Max. 28

EXPERIENCE

Max. 15

AGE

Max. 12

ARRANGED EMPLOYMENT IN CANADA

Max. 10

ADAPTABILITY

Max. 10

Total

100

For a detailed breakdown of the Skilled Worker immigration factors, please click on the following link.

In summary, the Immigration and Refugee Protection Regulations under the skilled worker class features a selection process THAT:

Favours married (or common-law partners, conjugal partners) applicants with university education at the graduate level.

Rewards applicants with government approved job offers in Canada.

Provides the Minister of Citizenship and Immigration with authority to set and amend the pass mark at any time during the process with no lock-in protection for an application under assessment. This gives rise to a highly unpredictable selection regime.

Preserves the discretionary powers of a visa officer to assess an applicant’s overall settlement potential, irrespective of the point total and approve an application under the positive discretion (or refuse an application under the negative discretion) provisions of the regulations. This mechanism is used to accept a number of applicants who will be able to successfully settle in Canada yet who do meet the applicable pass mark.

Follows a processing system based on an applicant’s nationality or current place of legal residence.

Establishes a continuing conformity principle requiring applicants to meet applicable selection criteria at the time an application for a permanent resident visa is made as well as at the time the visa is issued. This gives rise to a highly unpredictable selection regime.

On November 28, 2008, the Minister of Citizenship, Immigration and Multiculturalism, provided assurances that new federal skilled worker applications should receive a selection decision within 6-12 months from submission. This contrasted substantially with applications submitted under the old regime where, depending upon the time of year, the immigration program and the office in question and other factors, the processing time for an application for permanent residence filed under the economic class can vary from between 12 months and 40 months. This is the time generally needed to demonstrate compliance under one of the applicable categories; a clean bill of health for the applicant and accompanying dependants; sufficient assets to successfully establish the family in Canada; and a confirmation of no criminal inadmissibility’s for the applicant and the overage accompanying dependants. (The immigration offices in New Delhi, Islamabad, Beijing, Manila and Accra historically attract the most applications and therefore have the longest processing times).

The application for permanent residence generally includes the applicant, spouse or common-law partner or conjugal partner 16 years of age or older and any unmarried children under the age of 19 years. Children over the age of 19 may in prescribed circumstances, be included as accompanying family members.

Applications for Canadian permanent residence under the Skilled Workers Class are initially filed inside Canada through the Centralized Intake Office — Case Processing Centre in Sydney, Nova Scotia. Once approved, the application will undergo further processing with an appropriate immigration office outside of Canada that serves the country where the applicant is legally residing or the immigration office that serves the applicant’s country of nationality.

Applications for permanent residence must include the appropriate non-refundable processing fees for applicants and their accompanying dependants. For applicants applying under the skilled worker program the application fee is currently set at $550 CAD for each applicant as well as each family member of the principle applicant who is 22 years of age or older. A fee of $150 shall apply to each family member under the age of 22 years. As well, a Right of Permanent Residence Fee of $490 CAD is levied, prior to visa issuance, for each person who is at least 22 years of age applying for permanent residence.

Processing fees must be filed with the application. Right of Permanent Residence fees are submitted upon request by the visa office, prior to visa issuance. Applicants are encouraged to verify with local missions for applicable immigration office specific payment procedures.

The applicant need not visit Canada as part of the immigration process. However in some cases, familiarity with the Canadian landscape and particularly with the area of intended destination can impact positively on the assessment.

Applicants applying under the Investor or the Entrepreneur class are encouraged to undertake exploratory visits to Canada and participate in information sessions sponsored by the provinces. For Entrepreneur Class applicants, such efforts may relate to an indication of an applicant’s ability to meet the universal terms and conditions of admission.

The applicant and spouse (where applicable), will generally be required to travel to the processing immigration office and attend a selection interview. In many cases, the requirement for a spouse to attend the selection interview can be waived.

As well, certain posts require that accompanying dependant children over the age of 22 years attend the immigration selection interview.

Generally, an interview would be conducted to ensure the accuracy of the information contained in the documentation submitted; to clarify issues relating to the applicant’s background; to confirm an applicant possesses the necessary means to settle in Canada; to verify the absence of security inadmissibility’s; to ensure the applicant is intending to enter the Canadian labour market; to verify whether there are sufficient grounds to exercise positive discretion; etc. The interview cannot be conducted to verify an applicant’s language abilities.

Under the Business Class (Investor, Entrepreneur, Self-Employed), applicants are interviewed to ensure conformance with the statutory definitions and to review the general parameters of the business proposal in Canada.

Applicants are advised to bring to the interview, all original documentation supporting the application; certificates of non-criminal conviction; evidence of settlement funds.

Certain factors may justify the waiving of a selection interview. This is a highly discretionary aspect of the Regulations and is largely a function of the immigration office in question, the habitual residence of the applicant and the documentation in support of the applicant’s qualifications.

All Federal Skilled Workers applications must contain in prescribed format, the name, birth date, and address, nationality and immigration status of the applicant and all family members of the applicant and the class of visa being requested. The application must also contain the four-digit codes from the National Occupational Classification that corresponds to each of the occupations engaged in by the applicant and that constitutes the skilled worker’s work experience. Supporting documentation includes copies of passports, birth and marriage certificates, proof of language proficiency, evidence of past work experience, official evaluation of education credentials, evidence of sufficient settlement funds, photos and the required processing fees.

Yes. During the First-Stage evaluation process, applicants must:

Possess at least one year of applicable full-time experience in one of 50 major high demand occupations (health, skilled trades and finance) listed here; OR

Possess an approved offer of employment “Arranged Employment”; OR

Be legally living in Canada for a minimum of one year as a temporary foreign worker and have received a permanent full time employment offer from current employer; OR

Be enrolled in good standing in a Canadian PhD program and have completed at least two years of the program or graduated within the 12 months preceding the application.

During the Second-Stage evaluation process, applicants must possess:

At least one year of experience within the past 10 years in one of the occupations listed in either Skill Type 0 or Skill Level A or B of the National Occupational Classification (the “NOC”) is a necessary preliminary requisite to qualifying for permanent resident status.

To receive consideration for experience, the applicant must perform the actions described in the lead statement for the occupation as set out in the NOC and at least a substantial number of the main duties of the occupation including all of the essential duties. There is no obligation to meet the occupational employment requirements described in the NOC.

Applicants must specify in their application the four-digit code of the NOC that corresponds to each of the occupations engaged in by the applicant and that constitutes the skilled worker’s work experience.

A number of graduate students and post doctoral candidates may not possess so called «full time» employment experience within the traditional sense other than faculty related internships, teaching positions, etc. In many cases, such experience may prove sufficient.

The number of units of assessment awarded under the experience factor will depend upon reasoned presentations and supporting documentation on the part of the applicant demonstrating that the applicant meets the requirements of NOC and would ultimately be left to the appreciation of the interviewing visa officer.

There is no requirement for an applicant to become employed in Canada in an occupation that is consistent with past employment experience.

No. Under current rules, an applicant can qualify for admission under the Federal Skilled Workers program without an approved offer of employment on the basis of possessing at least one year of applicable full-time experience in one of 50 major high demand occupations.

However, applicants who do not meet the above requirement must obtain a suitable offer of employment which must be approved by Employment and Social Development Canada (“ESDC”). This is referred to as “arranged employment”. This will also provide a prospective applicant with an additional 15 units of assessment.

The current selection rules favour applicants with government approved job offers in Canada.

There are a number of occupations in Canada requiring registration and/or licensing, as a condition of employment, a process that varies from province to province. However, the employment requirements including occupational licensing is not a requirement that must be met as a condition of immigration approval.

Under the skilled worker class, applicants must provide evidence of sufficient funds for the family to travel and settle in Canada as measured against the current annual Low Income Cut-Off (LICO) published by Statistics Canada.

A sum of approximately $22,000 would satisfy the requirements for a family comprising of the applicant, spouse and two children. Such evidence may be furnished immediately prior to visa issuance.

Exempt from this financial requirement would be applicants who have received an approved job offer in Canada.

The principal applicant receives five points for adaptability if they or their accompanying spouse or common-law partner, have a close relative in Canada such as a parent, grandparent, child, grandchild, spouse, common-law partner, sister, brother, uncle, aunt, nephew or niece who is a Canadian citizen or permanent resident and is physically residing in Canada.

Current legislation provides that permanent resident status is maintained if a person is physically resident in Canada for at least 730 days (2 years) within any period of 5 years, or if other circumstances are met.

If not physically present in Canada, permanent resident status can be maintained while abroad where the Canadian resident is abroad with a Canadian citizen spouse or parent; with a Canadian employer, or with a Canadian permanent resident who works for a Canadian employer.

It is sufficient for a permanent resident to demonstrate at examination, if they have been a permanent resident for less than five years, that they can potentially meet the 730-day residency obligation in respect of the five-year period immediately after their arrival in Canada. An officer is not permitted to exclude the possibility that an applicant who has resided abroad for three years, may still be able to comply with the residency obligation during the remaining two years of the five-year period.

Canadian residency rules are among the most flexible. In effect one who is recently admitted as a permanent resident can theoretically leave Canada for up to three years after activating their resident visa to pursue their existing obligations while preserving Canadian permanent residence throughout this initial period.

Traditionally, visa officers have viewed concurrent applications for permanent residence and temporary entry as being incompatible with each other.

Current law attempts to clarify the issue and provides that immigration officers must assess the present intention of the applicant when a person applies to visit Canada and verify the question of whether the applicant has the ability and the intention to enter Canada for a temporary purpose and thereafter leave Canada at the expiry of the visitor status, regardless if the long-term goal is to secure permanent residence in Canada. Visitor’s (work, study or visit) with pending immigrant applications may be subject to the issue of Dual Intent if they cannot demonstrate that they will leave Canada by the end of the period authorized for their stay.

Under current immigration policy, applicants are encouraged to become familiar with Canada’s landscape, which will augment the applicant’s likelihood of successfully integrating into Canadian society. Applicants are discouraged however from «waiting» inside Canada during the permanent residence application process. Applicants who wish to procure temporary entry into Canada and who have a pending application for permanent residence will be required to demonstrate sufficient ties to their current country of residence prior to the issuing of a temporary visitor’s visa by the Canadian visa office.

The issues raised above should be reiterated here as well. In addition, applicants who wish to procure a temporary work permit must generally initiate the process with the assistance of the prospective employer who must file an application with the Canada Employment authorities inside Canada. It is only after the employment authorities have confirmed that the hiring in question will have a neutral effect on the local labour market that the application would be approved and forwarded to the appropriate visa office outside Canada for immigration assessment and processing. This is known as obtaining a positive «labour market opinion». As the average processing time for permanent residence applications currently exceeds 12 months at most immigration offices, it may be advantageous in many cases, for the applicant to apply for a temporary work permit either prior to or during the processing of an application for permanent residence.

The Canadian immigration authorities are continuously revising programs and policies to reflect Canada’s changing labour market requirements. The current Regulations provide the Minister of Citizenship and Immigration with authority to set and amend the pass mark at any time during the process with no lock-in protection for an application under assessment. Qualified applicants who manifest a serious interest in obtaining permanent residence would be encouraged to proceed with the filing of the application(s) and the non refundable government filing fees in a timely fashion so as to initiate and conclude the processing at the earliest possible time.

As well, since the processing of a permanent resident visa application generally takes many months to complete, Canadian employers are often willing to consider sponsoring the candidacy of qualified foreign applicants under a temporary work visa. Applicants may therefore consider canvassing the Canadian labour market while simultaneously processing an application for permanent residence.

Employers in the Canadian Health Care, Engineering, Financial Services sectors, Construction and Skilled Trades, Machining and Heavy Equipment Operators, Automotive and Agriculture are recruiting qualified individuals who are lawfully permitted to take up employment in Canada on a temporary or permanent basis. Many of these firms are currently advertising available positions in Canada’s leading newspapers, trade journals and or through the Internet.

The Canadian Government imposes income tax on the basis of residency rather than citizenship. It is therefore possible to become a Canadian citizen and a non-resident for tax purposes. After becoming a permanent resident and prior to attaining citizenship, an individual would be required to pay Canadian taxes on worldwide income.

The assets of a newly arriving immigrant are not taxed under Canadian law.

Pursuant to the provisions of the Quebec/Canada Accord, the Immigration and Refugee Protection Act and the Quebec Act Respecting the Selection of Foreign Nationals, the Quebec Government is currently the only provincial government in Canada to have concluded a comprehensive agreement for the purpose of facilitating the formulation, coordination and implementation of immigration policies and programs with respect to the admission of foreign nationals to the province.

However, the Canadian Citizenship & Immigration authorities maintain exclusive jurisdiction in the areas of visa issuance, and medical and criminal inadmissibility.

Applicants, who are intent on settling in Quebec after acquiring Canadian permanent residence, are encouraged to file their applications for a Quebec Certificate of Selection with the appropriate Quebec Delegation outside Canada. Once this undertaking is completed and approved, the appropriate Canadian visa office would review the appropriate applications for Canadian permanent residence.

Applicants destined to Quebec or who attempt landing in Quebec without prior approval from the Quebec authorities will likely experience difficulties at a Port Of Entry. This is a sensitive issue and must be addressed by experienced counsel.

A detailed review of the Quebec skilled workers program may be obtained from here.

All of the provinces have concluded agreements with the Canadian government under the Provincial Nominee program, which provide for the selection of a very limited number of foreign nationals destined to one of those provinces each year. Most provincial programs require employer sponsorship to support a nomination. Owing to the general requirement of employer sponsorship as well as the high volume of applications that are currently awaiting processing under most provincial program outside Quebec, applicants applying under a Provincial Nominee program are strongly encouraged to secure approved job offers, regardless of the point total received following a self-assessment, in order to increase their chances for approval under a provincial nominee program.

A detailed review of the Provincial nominee programs may be obtained here.

Citizens from the list of countries referenced in the Country List «A», the following writing (Removal of U.S. Entry Visa Requirements for Certain Permanent Residents of Canada) are required to file an application with a U.S. consulate along with a non-refundable $100 filing fee. First time applicants with the exception of children under 16, adults over 60 and persons with diplomatic status, will likely be required to attend a personal interview. The visa once issued, will be valid for a period of five to ten years.

Landed immigrants in Canada holding passports from Country List «B» of the writing do not require visas to travel to the United States, because their countries of origin have reciprocal visa-waiver agreements with the U.S.

Canadian permanent residence does not confer any particular US immigration benefits. Canadian citizens may travel to the US without a visa, and may seek employment in one year increments under the North American Free Trade Agreement (NAFTA). NAFTA provides a list of eligible classes of employment most of which are executive, managerial, professional or scientific in nature. The US does not offer Canadians a fast track to permanent residence or employment outside of the NAFTA list.

Generally, one may apply for Canadian citizenship if one has maintained permanent residence in Canada three of the four years preceding the application.

Canadian and authorities in the United States have concluded a number of efforts to further expand upon cooperative strategies in the areas of shared intelligence gathering, administration of customs and revenue policies and joint procedures on security with government agencies in the United States in order to better secure our North American perimeters. Such initiatives also include information and electronic database sharing with law enforcement agencies between G8 member countries, including Canada.

However, Canadian immigration policies currently reflect a more strict approach to the selection and admission of foreign nationals for reasons that relate to the volume of applicants worldwide, who are interested in relocating to Canada and therefore which do not necessarily relate to the events of September 11, 2001.

There were 229,040 immigrants admitted to Canada under all categories in 2002, including approximately 138,000 Economic Class (Skilled Workers and Business Immigrants) comprising of applicants and their accompanying family dependants. In 2003, 221,355 immigrants were admitted to Canada including 121,050 Economic Class. In 2004 there were 235,824 admissions including 133,746 economic immigrants. Similar numbers were admitted in 2005.

The annual plan for 2009 includes up to 156,600 immigrants in the Economic Class; 71,000 in the family class; and 37,400 in the humanitarian class.

«We are all citizens of the world and the tragedy of our times is that we do not know this». — Woodrow Wilson

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